130 N.Y.S. 542 | N.Y. App. Div. | 1911
This is in form an appeal from an order denying defendant’s motion for a retaxation of costs, but in effect challenges the plaintiff’s right to recover costs at all.
The action is for assault. The defendant was a resident of New York county and could have been served therein, but hearing that plaintiff proposed to commence an action; he voluntarily appeared. The plaintiff recovered judgment for less than $500. The case was one which could. have been brought, except for the amount claimed, in the City Court of the city of New York, and the defendant’s contention is that since the recovery was less than $1,000 the plaintiff is entitled to recover no costs. ' (Code Civ. Proc. § 3228, subd. 6.) The plaintiff, however, insists’that the subdivision above referred to applies only when the defendant shall have been “personally served with process,” which was the language of the section of the Code when this action was begun in September, 1909. (Laws of' 1904, chap. 557.) The language of the present section is “ served with process.” (Laws of 1910, chap. 574.) So far as concerns the present appeal we dó not consider that this change in phraseology is significant. The question is whether or not the subdivision of section 3228 applies' to a case in which the defendant was present in the county. and could have been personally served with process but was not served because he voluntarily appeared. Section 424 of the Code of Civil Procedure provides that “A voluntary general appear-anee of the defendant is equivalent to personal service of the summons upon him.” We think that this section should be given its full significance in the present case. TKe purpose of
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.